The U.S. Supreme Court will soon hear arguments in a case asking whether the University of Texas at
Austin (UT) has used race in its undergraduate admissions
decisions in a manner that violates the Fourteenth
Amendment’s Equal Protection Clause (Fisher v. University
of Texas at Austin,
No. 11–345). The court’s decision will likely affect other
universities that use race-conscious admissions policies to
promote diversity in its student body.

UT admits approximately 75 percent of its freshman
pursuant to the state’s “Top Ten Percent Rule,” which
requires the university to accept all Texas high school
seniors who rank in the top 10 percent of their graduating
classes. UT allocates the remaining spots to candidates in
accordance with UT’s own admissions policy. It considers
such factors as standardized test scores and class rank
and was made race-neutral in 1996 after a federal court
determined that the University of Texas Law School was
using impermissible “racial preferences” in its admissions
process (see Hopwood v. Texas, 1996).

The last time the Supreme Court considered the issue
of race and university admissions was nearly a decade
ago in a case involving the University of Michigan Law
School, which in the 1990s began using race as a factor
in its admissions decisions to increase the diversity of its
student body. Its admissions policy was challenged in court,
but the Supreme Court determined, in a 5–4 decision, that
the policy did not violate the Constitution (see Grutter v.
Bollinger, 2003). Writing for the majority, Justice Sandra
Day O’Connor explained that “student body diversity is
a compelling state interest” because it promotes “
cross-racial understanding,” helps to dispel racial stereotypes,
“promotes learning outcomes” and “better prepares
students for an increasingly diverse workforce.” The
majority also found that the policy was narrowly tailored
to achieve these benefits because it did not use a racial
quota, but instead considered race as part of a flexible,
individualized assessment designed to build a “critical mass”

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of underrepresented minority students. The four dissenting
justices concluded that the “alleged goal of ‘critical mass’ is
simply a sham” and that the admissions policy amounted to
“patently unconstitutional” racial balancing.

After Grutter, UT began to consider race when filling
the spots that were not covered by the Top Ten Percent
Rule. In the suit now before the Supreme Court, Abigail
Fisher, a white Texas resident who was denied one of these
spots, alleges that UT violated her equal protection rights
by accepting minority candidates with weaker academic
credentials. She also asks the court to reconsider its holding
in Grutter. Because three of the five justices who joined in
the Grutter majority are no longer on the court (including
Justice O’Connor, who was replaced by Justice Samuel Alito
in 2006), Grutter may be overruled.

Several psychological studies address legal issues in these
cases, and APA has filed amicusbriefs to make courts aware
of them. For example, APA’s briefs cite research showing
that unconscious stereotyping and biases toward other
racial groups can be reduced through positive exposure
to members of those groups (e.g., Blair, 2002; Pettigrew
& Tropp, 2000). The briefs also call attention to research
indicating that a critical mass of minority students is
necessary to promote cross-group interaction, limit self-segregation, dispel prejudice, reduce “stereotype threat”
and limit the adverse effects of tokenism (e.g., Schofield &
Eurich-Fulcer, 2001; Steele, 1997; Wright et al., 1997; Cohen
& Swim, 1995; Lord & Saenz, 1985).

The court recognized in Grutter that the benefits of
diversity in higher education “are not theoretical but real”
(Grutter v. Bollinger, 2003), and it rejected the notion that
race-neutral means can be used “to obtain the educational
benefits of student body diversity.” It is not clear, however,
that the current court will take a similar view, even though a
large body of psychological research supports it. n

“Judicial Notebook” is a project of APA Div. 9 (Society for the
Psychological Study of Social Issues).